Long v. Manville Forest Products Corp.

593 So. 2d 854, 1992 La. App. LEXIS 53, 1992 WL 9557
CourtLouisiana Court of Appeal
DecidedJanuary 22, 1992
Docket23114-CA
StatusPublished
Cited by5 cases

This text of 593 So. 2d 854 (Long v. Manville Forest Products Corp.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Long v. Manville Forest Products Corp., 593 So. 2d 854, 1992 La. App. LEXIS 53, 1992 WL 9557 (La. Ct. App. 1992).

Opinion

593 So.2d 854 (1992)

Richard Lynn LONG, Plaintiff-Appellant,
v.
MANVILLE FOREST PRODUCTS CORPORATION, Defendant-Appellee.

No. 23114-CA.

Court of Appeal of Louisiana, Second Circuit.

January 22, 1992.

*855 Bruscato, Loomis & Street, Monroe by James L. Braddock, for plaintiff-appellant.

Hudson, Potts & Bernstein, Monroe by Brady D. King, II, for defendant-appellee.

Before MARVIN, C.J., and HIGHTOWER and VICTORY, JJ.

MARVIN, Chief Judge.

Following a trial on the merits in this worker's compensation action after we reversed in part a summary judgment denying temporary total benefits and remanded the case in 1989, the claimant, Richard Long, appeals a judgment dismissing his demands. See Long v. Manville Forest Products Corp., 554 So.2d 181 (La.App. 2d Cir.1989), hereafter Long.

Long, a general maintenance mechanic at Manville's paper mill, was paid temporary total disability benefits for about 20 months following a 1985 accident that fractured several bones in his foot and stripped the skin from his left ankle and heel. His weekly benefits terminated in September 1986, when he returned to his job without medical restrictions. Except for about a month ending July 17, 1989, Long continued working in his job through the trial on the merits in 1990.

Long contends he is entitled to w.c. benefits because he has been working in substantial pain and only out of economic necessity since September 1986. In Long we held working-in-pain then remained a viable basis for an award of temporary total benefits even after the 1983 amendments to the w.c. law. Now see LRS 23:1221(1)(b), enacted by Act No. 454 of 1989.

The trial court disagreed with Long's factual contention, finding that Long proved that his pain was only "slight to moderate," and not substantial or disabling. The record supports the trial court's conclusion.

Alternatively, Long, who has earned higher wages after his injury, seeks an award for supplemental earnings benefits for any future period in which he does not earn more than 90 percent of his pre-injury wages.

We affirm.

FACTS

Long's accident occurred January 23, 1985, when he was about 34 years old. Surgical treatment left the injured area weaker and more tender than the rest of Long's foot. The bone fractures damaged several joints in Long's foot, causing recurring pain and stiffness in his foot and increasing the likelihood that he will develop degenerative arthritis as he ages.

Long's orthopedic doctor, Dr. Nawas, released him to return to work in September 1986, after finding that Long had achieved "functional recovery" and should be able to perform his job duties, notwithstanding that he still had some foot pain.

Long has worked full-time for Manville, performing his pre-accident duties, since September 1986, except for a one-month period from June 13-July 17, 1989, during which Long had two pinched nerves, called Morton's neuromas, surgically removed from his left foot. Long first reported a burning sensation or pain in the area of the neuromas to Dr. Nawas on May 26, 1989. Dr. Nawas opined that the neuromas were related to Long's work injury. Manville paid Long's medical expenses and weekly *856 benefits during the month of work he missed in 1989.

Long sued in 1987, alleging that he was working in substantial pain and seeking "permanent disability and/or supplemental earnings benefits." Manville supported its 1989 motion for summary judgment by showing that Long had been performing his pre-accident duties on a full-time basis and earning higher wages than before the accident.

On the appeal of the trial court's summary judgment, we found that Long was not entitled to permanent total disability benefits because the working in pain doctrine was statutorily excluded as a basis for permanent total disability claims in the 1983 w.c. revisions. We also found that "no supplemental earnings benefits are awardable," because Manville's affidavit showed that Long, after his return to work, earned more than 90 percent of his 1985 wages. Finally, we found that the working in pain doctrine remained viable as to Long's claim for temporary total disability benefits, but that this claim presented material factual issues precluding summary judgment.

Long is a member of a 14-man work crew that maintains and repairs a paper machine which is about 1500 feet long and about 25 feet high. He is required to sit, stand, bend, squat, climb, and lift heavy objects. He carries a tool pouch weighing 25-50 pounds.

Long testified that he has had "constant" pain in his left foot since he returned to work in September 1986. He said the pain increases with squatting, climbing, or prolonged standing. Long testified that he would sometimes get other workers to help him with his duties. He did not call those workers at trial. Long also said he sometimes soaks his foot in warm water and has it massaged at home after work.

Long said he was "not free of pain" when he returned to work in September 1986, but did not describe the severity of his pain. Long said he asked Dr. Nawas to release him to return to work because he needed the income to support his wife and four children.

Dr. Nawas testified that he released Long to return to work in September 1986 because Long

... had what we call "functional recovery" where he was able to use his foot and was able to stand the stress of his job at Manville ... which required him to lift things, to drive forklifts, and to deal with paper products and paper finishings....
The most common residual problem in a situation like this is post-traumatic degenerative arthritis in ... the middle part of his foot....
Q. What types of restrictions or limitations will that place upon Mr. Long with respect to his ability to use his foot and maintain his employment?
Well, at the present time [April 1990] I wouldn't put any restrictions on him, as long as he is capable of doing his work. He might have some aches or some stiffness in his foot.... But as far as somebody who is thirty-four or thirty-seven years old, quite active, healthy, I think he should be able to function quite well in spite that he would have some pain, some discomfort in his foot. And you hope that his supervisor will be understanding enough to let him rest occasionally when he complains, because he has genuine reason to be sympathetic with him.
Q. Okay. I understand that you don't particularly want to call it maximum medical recovery, his state of recovery [in] September of '86, but in your opinion, he had progressed enough to where he could return to the type of work that he had been employed in before the accident. Is that correct?
That's correct.
Q. ... If you can, Doctor, can you quantify that pain [in September 1986]? I think a slight to moderate.
Q. And would it be exacerbated by movement or activity?
That's correct.

After working for about two months, Long returned to Dr. Nawas in November *857 1986, complaining of "pain in his foot, especially after prolonged standing at work and when he wears boots. He feels much more comfortable if he is wearing sneakers or tennis shoes. He is given a note to be allowed to wear comfortable shoes at work. He is to return [as needed]." After receiving the note from Dr. Nawas, Manville allowed Long to wear tennis shoes while working, contrary to Manville's general policy requiring safety shoes.

Long next saw Dr.

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593 So. 2d 854, 1992 La. App. LEXIS 53, 1992 WL 9557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-v-manville-forest-products-corp-lactapp-1992.